Delaware § 5401 - Findings of the General Assembly [See Evans v. State, 872 A.2d 539 (Del. 2005) concerning unconstitutionality of this section.].

§ 5401. Findings of the General Assembly [See Evans v. State, 872 A.2d 539 (Del. 2005) concerning unconstitutionality of this section.].

The members of the 143rd General Assembly find that:

(1) On November 23, 2004, the Delaware Supreme Court sitting en banc decided the case of Ward T. Evans v. State of Delaware, 2004 WL 2743546 (Del. Supr.); and

(2) The Court held that Evans’s life sentence with possibility of parole (the penalty imposed after a September 29, 1982, jury conviction of first degree rape) had to be calculated as a 45-year term, for purposes of determining his conditional release date pursuant to § 4348 of Title 11; and

(3) In 1997, the Court held that § 4348 of Title 11 could not be applied to inmates sentenced to life imprisonment with possibility of parole (Jackson v. Multi-Purpose Criminal Justice Facility, 700 A.2d 1203 (Del. 1997)), but in 2003 the Court reversed that decision (Crosby v. State, 824 A.2d 894 (Del. 2003)); and

(4) As a result of the Court’s 2004 holding, the Evans case was reversed and remanded to the Superior Court for a determination of whether Evans had earned any good time or merit credits, and for an appropriate adjustment of his maximum release date; and

(5) Following the Evans decision, the State, through the Office of the Attorney General, filed a motion to reargue, which the Court denied; and

(6) Section 4346 of Title 11, which addresses eligibility for parole, states that “[f]or all purposes of this section, a person sentenced to imprisonment for life shall be considered as having been sentenced to a fixed term of 45 years” (emphasis added); and

(7) The 45-year fixed term was intended to apply and applies only to § 4346 of Title 11 for determining parole, a discretionary proceeding, and does not apply to § 4348 of Title 11, a mandatory proceeding which determines conditional release upon merit and good behavior credits; and

(8) When the General Assembly wrote the phrase, “shall, upon release, be deemed as released on parole” (emphasis added) in § 4348 of Title 11, it was establishing a legal fiction in order to use the provisions of the parole subchapter for supervision and other post-release requirements for both parolees and those conditionally released under § 4348 of Title 11; and

(9) The special requirement of a super-majority vote to parole a person convicted of rape in the first degree and other heinous crimes is further proof that §§ 4346 and 4348 of Title 11 are 2 separate and distinct procedures, the former being discretionary and the latter, mandatory; and

(10) Because applying the 45-year fixed term definition to § 4348 of Title 11 results in the potential release from prison of a person convicted of rape in the first degree after the person’s serving as few as 26 years, and, further, will result in nearly 200 Delaware prisoners who have committed serious and heinous crimes prior to June 30, 1990, being released from prison;

the Supreme Court erred by reading a clearly written statute, being § 4346 of Title 11, and by applying it to another statute, despite the clear language that limits the definition of a life sentence with possibility of parole to only § 4346 of Title 11. In addition, the General Assembly had never intended that good time or merit credits were to apply to serious, violent offenders.

75 Del. Laws, c. 1, §  1;  70 Del. Laws, c. 186, §  1;